Deokinandan Vs. Zamir HusaIn Khan and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/480734

Court

Allahabad

Decided On

Nov-19-1920

Judge

P.C. Banerji and ;Gokul Prasad, JJ.

Reported in

64Ind.Cas.24

Appellant

Deokinandan

Respondent

Zamir HusaIn Khan and ors.

Excerpt:co-owners - adverse possession--ouster. - .....he died some years ago leaving a widow latifan, a son habibuddin khan and a daughter manisi bagam. munisi begam is the daughter of zafaruddin khan by musammat latifan. this lady has married a second husband, habibuddin got his name record ed in the revenue papers in respect of the entire property after the death of his father and on the 14th of january 1906 he sold it to defendant no 1. in march 1915, munisi begam sold her share in her father's property to the plaintiff. the plaintiff instituted the present suit for recovery of possession of the share sold to him. there can be no doubt; that the property belonged to munisi begam, the vendor of the plaintiff. the only plea which was put forward by the defendants was that habibuddin and after him the defendants had been in adverse.....

Judgment:

1. The facts of this case are as follows;--One Zafaruddin Khan originally owned the property now in dispute. He died some years ago leaving a widow Latifan, a son Habibuddin Khan and a daughter Manisi Bagam. Munisi Begam is the daughter of Zafaruddin Khan by Musammat Latifan. This lady has married a second husband, Habibuddin got his name record ed in the revenue papers in respect of the entire property after the death of his father and on the 14th of January 1906 he sold it to defendant No 1. In March 1915, Munisi Begam sold her share in her father's property to the plaintiff. The plaintiff instituted the present suit for recovery of possession of the share sold to him. There can be no doubt; that the property belonged to Munisi Begam, the vendor of the plaintiff. The only plea which was put forward by the defendants was that Habibuddin and after him the defendants had been in adverse possession and that the plaintiff and his predecessor-in-title, namely, Munisi Begam, were never in possession. This plea has been accepted by the lower Appellate Court, which has dismissed the suit on the ground that the plaintiff had been unable to prove the possession of his vendor or his own possession within twelve years preceding the date of the suit. The learned Judge who decided the casts seems to have overlooked the fact that Habibuddin was the brother of Munisi Begam and that upon the death of their father both of them inherited the father's property. They were, therefore, co owner of the property and unless Habibuddin asserted an adverse right the mars fact that he got the name entered in the revenue papers would not be sufficient to amount to an ouster of his sister Manisi Begam. It has been held by their Lordships of the Privy Council and by this Court in a numbers of cases that the possession of one co-owner must be deemed to be the possession of all the so owners, unless there was some act of ouster by which one of the co-owners was deprived of possession by another. In the present case nothing is shown to have been done by Habibuddin prior to 1906 (when he executed a sale-deed), which might be deemed to be a denial of the title of his sister or the ouster Of the sister from the property to which she was legally entitled. In these circumstances the possession of Habibuddin prior to the execution of the sale deed of 1906 must be deemed to be the possession of Manisi Begam and the claim could not be held to be barred by limitation. The Courts below were, therefore, wrong in dismissing the suit as so barred. As other issues were not tried by the Court below, the case must go bask to the lower Appellate Court. We accordingly remand it under Order XLI, Rule 23, with directions to re-admit the appeal under its original number in the register and to dispose of the other issues according to law. Costs here and hitherto will be costs in the cause.